The Advisory Guidelines at Twenty: Has Booker Delivered on Its Promise?

On January 12, 2005, the Supreme Court decided United States v. Booker, 543 U.S. 220 (2005), and the Federal Sentencing Guidelines became advisory. In the twenty years since, the federal sentencing system has undergone the most significant transformation in its history — but whether that transformation represents a restoration of judicial discretion or merely a rearrangement of the same forces that produced the mandatory Guidelines is a question that divides the bench, the bar, and the academy.

The constitutional holding of Booker was straightforward: the mandatory Guidelines, which permitted judges to find facts that increased a defendant's sentence by a preponderance of the evidence, violated the Sixth Amendment right to a jury trial. The remedy — severing the statutory provision that made the Guidelines mandatory — was less straightforward. It transformed the Guidelines from a binding code into a set of advisory ranges that sentencing courts must calculate and consider but are not required to follow.

The practical consequences have been mixed. On one hand, district courts now impose sentences below the Guidelines range in approximately 28% of cases — a rate that was effectively impossible under the mandatory regime. Judges cite individual characteristics, policy disagreements with specific Guidelines, and the need to avoid unwarranted disparities as grounds for variances. The Supreme Court's decisions in Gall v. United States, 552 U.S. 38 (2007), and Kimbrough v. United States, 552 U.S. 85 (2007), confirmed that district courts have broad discretion to vary from the Guidelines based on their independent assessment of the § 3553(a) factors.

On the other hand, the Guidelines remain the "starting point and the initial benchmark" for every federal sentence. Gall, 552 U.S. at 49. The appellate reasonableness standard, while deferential, exerts a gravitational pull toward the Guidelines range. And the Department of Justice's charging policies — which effectively dictate the Guidelines range through the selection of charges and the decision to file sentencing enhancements — operate largely outside judicial supervision.

The most significant unresolved question after Booker is the use of acquitted conduct at sentencing. Under current law, a judge may find by a preponderance of the evidence that the defendant engaged in conduct for which a jury acquitted him — and use that conduct to increase the Guidelines range. The Supreme Court has repeatedly denied certiorari on this question, though dissents by Justices Scalia, Thomas, and Ginsburg have signaled deep discomfort with the practice. See Jones v. United States, 574 U.S. 948 (2014) (Scalia, J., joined by Thomas and Ginsburg, JJ., dissenting from denial of certiorari). The acquitted-conduct issue remains the most direct challenge to the coherence of the advisory Guidelines regime, and a future Court may well take it up.